Eric Posner on Executive Orders in NYTimes

A Powerful Tool to Use With Caution

Eric Posner

New York Times

January 29, 2014

The White House sent out word to the press that up till now President Obama has humbly tried to work through Congress, but Congress has balked, and so now he is going to wield his executive authority like Thor’s hammer. The truth is nearly the opposite. President Obama’s domestic agenda going forward looks modest, while in the past five years he has fired off nearly as many executive orders per year as George W. Bush. Without congressional authority, he invaded Libya, blasted suspected terrorists with drones, immunized groups of illegal immigrants from the law, initiated greenhouse gas regulation, authorized N.S.A. spying programs and much else. None of this was illegal — President Obama could cite statutes or his constitutional authorities — but Congress did not participate in the policy making.

President Obama has followed in the footsteps of his predecessors. Unilateral presidential action in foreign relations — aside from initial decisions to launch major wars and certain kinds of treaty making — has been the norm for at least a century. Unilateral presidential action in domestic regulation started in the New Deal. Congress grants enormous discretionary authority to the executive to set policy through regulation, and while it subsequently intervenes sporadically — with hearings, budgetary decisions, minor statutory interventions and so on — the bulk of decision-making is made by the executive. Truman desegregated the military with an executive order; Reagan used one to reorganize the federal bureaucracy.